Terms and conditions

Advertising and Content Served through AdGear

Definitions. For the purposes of this Agreement, in addition to the capitalized terms defined elsewhere in this Agreement or an Addendum, the following terms shall have the meanings ascribed to them as follows:

“Ad(s)” means any advertising or promotional material displayed online in text, rich media, graphics, video and/or audio material (or a combination of any of the foregoing).

“Ad Network(s)” means an Entity acting as a broker between groups of publishers and groups of advertisers. Ad Networks traditionally aggregate publishers and advertisers and handle residual Inventory but also have alternate variety of business models and clients.

“Ad Serving” means the delivery of Ads by a server to an end user’s Internet connected device on which the Ads are then displayed by a browser and/or cached.

“Addendum” or “Addenda” means any addendum executed by both Parties from time to time in connection with this Agreement.

“Additional Service(s)” means the advertising solution consulting, execution, technical support and training services provided by AdGear hereunder, as set forth in this Addendum.

“AdGear Data” means all data derived from the performance of the Services that does not specifically identify the Advertiser, including data used by the technology for performing real-time bidding and Ad delivery.

“Advertiser” means the advertiser or the client for whom Customer is the legally authorized agent under an applicable Insertion Order which authority provides Customer the right to enter into and bind Advertiser in respect of media placement agreements.

“Advertising Data” means all data of Customer’s Advertisers received by AdGear and any data identifying the Advertiser that is collected from any campaigns or websites of Advertiser during the course of this Agreement.

“Business Hours” mean Monday through Friday from 9:00 a.m. to 5:00 p.m. Eastern Time, exclusive of federal and provincial holidays.

“Confidential Information” in connection with a Party, means non-public information that such Party identifies as being confidential or which under the circumstances or disclosure reasonably should be treated as confidential, including without limitation, its financial matters, business, strategic development and marketing plans and employee lists, contact information and Advertising Data.. Confidential Information will however not include any information that: (i) was already known to the receiving Party prior to the other Party’s disclosure of such information so long as such information already known to the receiving Party can be substantiated by third party data or documentation; (ii) is or becomes publicly available without a breach of any obligation of confidentiality owed hereunder or by any third party; (iii) became known to the receiving Party from a source other than the other Party and other than by a breach of an obligation of confidentiality owed to the Party by such source; or (iv) is independently developed by the receiving Party so long as evidentiary documentation is provided to verify such independent development.

“NAI Rules” means the set of self-regulatory privacy principles for third-party Ad serving created and agreed to by the coalition of third-party Ad serving companies (currently referred to as the Networking Advertising Initiative (NAI) and in their current version posted at http://www.networkadvertising.org) as posted online from time to time by such coalition.

“Trademarks” means trademarks, service marks, trade names and business names and other distinctive brand features, including all goodwill associated therewith.

Term. The initial term of this Agreement is one year commencing on the Effective Date, and shall thereafter automatically renew for additional successive one year periods (if any, and collectively with the initial term, the “Term”); unless (i) the Agreement is terminated earlier as provided herein, or (ii) either Party provides the other Party with written notice, at least thirty (30) days prior to the end of the initial or then current term, of its intent not to renew.

Services. Subject to Customer’s compliance of its obligations pursuant to this Agreement, AdGear will provide Customer the Services in accordance with this Agreement and the applicable Addendum. Customer authorizes AdGear to make inquiries into Customerøs credit worthiness, including receipt and review of credit bureau information. Based on the results of such credit inquiry AdGear may refuse to provide Services to Customer.

Fees. In consideration for the Services provided or made available by AdGear pursuant to any Customer Service Agreement, Customer shall pay AdGear the fees set forth in the Customer Service Agreement. All amounts invoiced by AdGear to Customer are due within thirty (30) days following Customer’s receipt of the applicable AdGear invoice. Any invoiced amount which is not paid when due is subject to the higher of : (i) an interest rate of one and one-half percent (1.5%) per month (18% annually but compounded monthly) or (ii) the maximum interest rate allowed by law. Customer must provide AdGear written notice within five (5) business days following receipt of an invoice to dispute any invoiced amount. Such written notice shall contain reasonable detail of the cause of dispute. In the event of any late payment of any undisputed amount, AdGear may, upon no less than 30 day written notice to Customer, suspend Customer’s access to and use of any Service until all amounts owed by Customer to AdGear are paid. All amounts invoiced pursuant to any Customer Service Agreement are net of, and Customer shall pay any sales, use, excise, value-added, and other similar federal, state, province or local taxes or tariffs now in force or enacted in the future and which are applicable to any Services. Unless indicated otherwise, all fees are in Canadian dollars.

Confidentiality. Neither Party will disclose any of the other Party’s Confidential Information to any third party; provided, however, that a Party may disclose the other Party’s Confidential Information to its employees, agents and/or independent contractors to whom disclosure is reasonably required for the purpose of this Agreement and provided that such individuals and entities have agreed to keep such information confidential in a substantially similar manner as provided for in this Agreement. Neither Party will use any of the other Party’s Confidential Information except as expressly permitted by, or as required to achieve the purposes of, this Agreement. Each Party will take reasonable security precautions, at least as great as the precautions it takes to protect its own confidential information of a similar nature, to keep confidential the other Party’s Confidential Information. Notwithstanding anything contained in this section to the contrary, a Party may disclose Confidential Information of the other Party if required to do so by, and in accordance with, a judicial or other governmental order or as may be required by statute; provided, however, that the Party so disclosing Confidential Information will give the other Party as much advance notice as reasonably possible of any such disclosure so that the other Party may seek a protective order or other remedy. In the event such a protective order is not obtained, the disclosing Party will use its reasonable best efforts to ensure that only the minimum portion of the other Party’s Confidential Information necessary to comply with the law is disclosed. The Parties agree that monetary damages for breach of confidentiality under this section may not be adequate and the non-breaching Party shall be further entitled to injunctive relief.

Data. Customer shall be solely liable and responsible for its use of the Services, underlying software and data (including without limitation Advertising Data) displayed, uploaded, downloaded or transmitted through the use of Services or underlying software. AdGear retains ownership of, and all rights to, the AdGear Data.

Privacy. To the extent applicable to each Party’s performance and obligations under this Agreement, the Parties shall adhere to applicable privacy law and regulation and AdGear shall adhere to the NAI Rules. Each Party will post a privacy policy on its respective web site that is in accordance with all applicable laws, rules and regulations in its jurisdiction. Neither Party shall use the Services (either directly or via Advertisers) to collect, transmit, provide, or otherwise make available to or through the Services personally identifiable information, including elements described as sensitive information under the NAI Rules. Customer will not (including through or for Advertisers) associate personally identifiable information with information collected via the Services, unless such association is conducted in accordance with the NAI Rules and without use of the Services. Customer agrees to use commercially reasonable efforts to engage only those online advertising technology providers that agree to adhere to the NAI Rules or similar industry privacy standards.

Intellectual Property. Each Party will own and will retain all of its respective intellectual property rights. Customer agrees and acknowledges that AdGear owns and shall retain at all times all right, title and interest in and to the Services and all intellectual property rights associated therewith.

Representations and Warranties. Each Party represents and warrants that it has the right and authority to enter into this Agreement and perform its obligations, covenants and promises hereunder. Each Party represents and warrants that it is duly constituted and validly existing and in good standing under the laws of the state of its incorporation or formation.

Warranty Disclaimer. EXCEPT AS EXPRESSLY SET FORTH HEREIN OR IN AN ADDENDUM, THE SERVICES ARE DELIVERED “AS IS” AND ADGEAR DOES NOT MAKE ANY OTHER WARRANTY, EXPRESS OR IMPLIED, WITH RESPECT TO THE SERVICES, AND ADGEAR SPECIFICALLY DISCLAIMS ANY IMPLIED WARRANTY OF MERCHANTABILITY, UNINTERRUPTED OR ERROR-FREE PERFORMANCE, TITLE OR FITNESS FOR A PARTICULAR PURPOSE. ADGEAR DOES NOT MAKE ANY REPRESENTATIONS REGARDING THE BENEFITS OR RESULTS THAT CUSTOMER OR ANY THIRD PARTIES SHALL RECEIVE FROM THE SERVICES.

Limitation of Liability. Except to the extent expressly provided in the applicable Addendum service levels, AdGear shall not be liable to Customer or any other third party for any damage, loss, cost, or expense incurred in connection with Customer’s use of the Services or any information or data input into AdGear’s technology by Customer or at Customer’s request, including any technical malfunction, inputting errors, computer error, corruption or loss of data, or other damage. In no event shall either Party be liable for any indirect, consequential, special, incidental or punitive damages, even if advised of the possibility of such damages or if such damages are foreseeable. Except for any liabilities arising out of breach of confidentiality obligations or third party intellectual property infringement or misappropriation Claims, AdGear’s liability shall not exceed, for each Addendum and pursuant to the Agreement, the fees paid by Customer to AdGear (excluding any media transactions) pursuant to the applicable Addendum in the six (6) month period preceding the date the liability arose.

Indemnification. Any indemnification hereunder is subject to: (i) the indemnified Party promptly notifying the indemnifying Party in writing of the 3rd party claim for which the indemnified party is seeking indemnification; (ii) the indemnifying Party having sole control of the defense of the indemnified 3rd party claim, including through choice of counsel, provided the indemnified Party may also, at its own expense, use its own counsel. The indemnifying Party shall not settle any indemnified claim without the indemnified Party’s prior written consent.

Each Party will indemnify and hold harmless the other Party from and against any damage, cost, expense, and liability (including reasonable attorneys’ fees and costs) (collectively, “Damages”) related to or arising out of any third party claim, lawsuit, or proceeding (a “Claim”) based on an allegation that, if true, would constitute a breach of a representation, warranty, covenant or obligation under this Agreement by the indemnifying Party.

Customer agrees to indemnify and hold harmless AdGear from and against Damages related to or arising out of a Claim that alleges: (a) any data or content provided by Customer to or through the Services are illegal, deceptive, defamatory, or obscene, or violate a consumer’s online privacy or other rights, or infringe a third party’s intellectual property rights, or is based on any representation or warranty made by Customer to any third party (including users) in respect to the Services.

AdGear shall indemnify, defend and hold Customer harmless from and against Damages related to or arising out of a Claim that alleges any alleged misappropriation or infringement of a third party’s intellectual property rights by the Services. If as a result of such an infringement or misappropriation Claim, AdGear reasonably determines it is unable to continue providing the Services without continuing the alleged infringement or misappropriation, then AdGear shall, at its sole cost and discretion: (i) procure the rights necessary for Customer to continue to use the Services in an non infringing manner; or (ii) modify the Services without affecting the overall efficiency in order to make them non infringing; or (iii) if both i) and ii) are not possible, terminate the affected Addendum, the affected Services or this Agreement provided AdGear shall then immediately reimburse Customer all related fees paid to AdGear thereunder in the previous 12 month-period.

Termination for Breach. Either Party may terminate this Agreement in the event that the other Party is in material breach or default of its obligations pursuant to this Agreement. The non-breaching Party shall then give the breaching Party written notice specifying the nature of the breach or default, and, if the breaching Party fails to cure the breach or default within thirty (30) days following receipt of such notice, the non-breaching Party may then terminate this Agreement effective immediately by giving written notice thereof to the breaching Party. Notwithstanding any other provision hereof, AdGear shall have the right to immediately terminate this Agreement upon written notice thereof to Customer in the event of any breach by Customer of: i) any of its limited license right, or ii) any of its confidentiality or privacy obligations, in relation to any AdGear technology or intellectual property, which breach is not remedied within five (5) days of notice thereof from AdGear.

Insolvency Termination. Either Party may terminate this Agreement if the other Party (i) is insolvent; (ii) makes a general assignment for the benefit of creditors; (iii) is declared bankrupt by competent court; or (iv) becomes the subject of any voluntary or involuntary proceeding in bankruptcy, liquidation, dissolution, receivership, or general assignment for the benefit of its creditors, provided however that such proceeding was not dismissed within thirty (30) days after it was instituted.

Effect of Termination. Upon termination of this Agreement, (i) each Party’s license(s) to the other Party shall automatically be terminated; and (ii) Customer shall promptly pay to AdGear on the effective date of the termination any and all undisputed AdGear fees accrued and unpaid, unless termination results solely from a material breach by AdGear. Notwithstanding anything contained herein to the contrary, any claim for the payment of AdGear fees shall survive termination. Upon expiration or termination, AdGear agrees to transfer to Customer any accounts for third party advertising services that AdGear maintains solely on Customer’s behalf (if any), including any data maintained in such accounts by the third party advertising services.

Independent Contractor. Each Party is an independent contractor with respect to the other Party hereunder. This Agreement shall not be construed to (i) create any agency or mandate relationship between the Parties, or (ii) authorize any Party to enter into any commitment or agreement binding on the other Party.

Regulated Environment. Customer has entire and sole responsibility for its use of the Services in any environment that is subject to regulation.

Force Majeure. No Party shall be liable under this Agreement for any default, breach, failure, delay or interruption in performing any obligation (except an obligation to pay) of this Agreement due to causes beyond its reasonable control; subject however to the condition that such Party gives the other Party written notice thereof promptly and uses reasonable efforts to remedy or circumvent such cause.

Internet Risks. Customer acknowledges and agrees that the Services are provided via the Internet and there are inherent risks and limitations associated with the communication of information over the Internet including, without limitation, the possibility that such information may be lost, intercepted or altered or otherwise rendered non-confidential other than by default on the part of AdGear (“Internet Risks”). Customer acknowledges and agrees that while AdGear does enable communications through the Services by using industry standard encryption, Customer is also responsible for enabling and using such encryption, and that no encryption technology is completely secure. Customer acknowledges and agrees that any communication undertaken in connection with the Services, even if encrypted, may be subject to Internet Risks, and that, notwithstanding any other provision herein, AdGear shall not in any way be responsible or liable for any claim, action, damage or expense arising from such Internet Risks, unless arising from AdGear gross negligence or intentional fault.

Unauthorized Access. AdGear may at any time suspend Customer’s access to the Services (including, without limitation, any accounts or areas hosted within AdGear’s networks or systems that are specific to Customer) by any means whatsoever if AdGear has reasonable grounds to believe that Customer or any of its employees or subcontractors, or any third party notwithstanding AdGear’s reasonable security measures, is obtaining unauthorized access to such networks, systems or information (“Unauthorized Access”). AdGear shall be excused for any delay or default in the performance of its obligations herein resulting from any such Unauthorized Access or a related suspension of Services.

Notices. All notices pursuant to this Agreement shall be in writing and delivered either personally, by overnight courier or certified mail, and sent to the addresses set forth in this Agreement or to such other address as a Party may later specify in writing.

Assignment. Neither Party may assign or transfer any rights or delegate any duties under this Agreement without the other Party’s prior written consent, not to be unreasonably withheld, except that AdGear may assign this Agreement in the context of a sale or transfer of all or substantially all of AdGear’s assets, share capital or business by sale, merger or any similar transaction. Any unauthorized assignment or transfer shall be void. Subject to the foregoing restrictions, this Agreement will bind and benefit the parties and their successors and permitted assigns.

Entire Agreement. This Agreement, together with any Customer Service Agreement and Addendum, constitutes the entire agreement between the Parties and replaces any prior understandings or discussions relating to the subject matter of this Agreement. Any Addendum attached or expressly referring to this Agreement is incorporated into and forms part of this Agreement. In the event of any conflict between the terms and conditions of this Agreement and the terms and conditions in any Addendum, the terms and conditions of this Agreement shall take precedence.

Amendment. This Agreement may be amended, modified or supplemented only by a writing that is signed by duly authorized representatives of both parties, and, if this MSA is not itself executed by both parties but rather posted on the AdGear website and incorporated by reference to a customer contract, then it may also be amended, modified or supplemented by a new or additional AdGear posting on the Internet and/or e-mail notification from AdGear to customer and the continued use of the Service shall constitute Customer’s acceptance of those amendments and modifications.

Waiver. No failure or delay on the part of either Party in exercising any right or remedy under this Agreement will operate as a waiver, nor will any single or partial exercise of any such right or remedy preclude any exercise of any other right or remedy.

Enforceability. If any portion of this Agreement is determined to be unenforceable, then such portion shall be eliminated to the minimum extent necessary for this Agreement to be enforceable and legal, and this Agreement shall remain in effect in accordance with its provisions as modified by such elimination.

Advertising. AdGear may publicly disclose that Customer is a customer, including by reasonable limited use of Customer’s logo and name for such purposes.

Governing Law. This Agreement shall be governed by and construed in accordance with: i) if the Customer is based in Canada, the laws of Province of Ontario, and ii) if the Customer is based outside Canada, the laws of the State of New York, without reference to its conflict of law principles. For any disputes arising out of this Agreement, the parties consent to personal and exclusive jurisdiction of and venue in: i) if the Customer is based in Canada, the courts in Toronto, Province of Ontario, and ii) if the Customer is based outside Canada, the state or federal courts within New York, New York.

Counterparts. This Agreement may be signed in counterparts, and each such duly signed counterpart shall be deemed to be an original of this Agreement, provided however that each Party shall receive a counterpart executed by the other Party.

ADDENDUM – PROGRAMMATIC BUYING SERVICE TERMS AND CONDITIONS

Definitions. Unless otherwise defined herein, capitalized terms shall have the meaning set forth in the MSA.

“Ad(s)” has the meaning attributed thereto in the MSA.

“Ad Exchange(s)” means an organized marketplace system on which advertisers and publishers, by themselves or through their Ad Networks or other agents, or any other parties, buy and sell Inventory through various technologically assisted auction and bid processes.

“Ad Network(s)” has the meaning attributed thereto in the MSA.

“Ad Serving” has the meaning attributed thereto in the MSA.

“Additional Service(s)” has the meaning attributed thereto in the MSA.

“AdGear Trader Fees means the AdGear Trader Platform Fees and other fees, costs, expenses and other amounts described in the Customer Service Agreement.

“AdGear Trader Platform” means AdGear’s technological solution described in the Customer Service Agreement.

“AdGear Trader Platform Fee” means the amount specified in the Customer Service Agreement for Customer’s use of the AdGear Trader Platform at the selected account service level.

“Ad Serving Costs” means the total AdGear costs associated with serving Tags for an Ad campaign, if any (excluding Third Party Ad Serving costs that may be charged by Third Party rich media vendors or Ad servers (other than AdGear)).

“Advertiser Cost” means the total amount set forth in an Insertion Order and agreed to be paid to Customer by an Advertiser, including the Customer’s margin, if any, for each Ad campaign specified by Customer in the AdGear Trader Platform. The margin can be configured by the Customer in AdGear Trader, per Ad campaign, and is either fixed or variable.

“Advertising Data” has the meaning attributed thereto in the MSA.

“Business Hours” has the meaning attributed thereto in the MSA.

“Buyer Budget” means the total amount to be spent through the AdGear Trader Platform in relation to the acquisition of Inventory for Customer, excluding any margin specified by Customer in the AdGear Trader Platform for each Ad campaign. The AdGear Trader Platform will automatically calculate the Buyer Budget from the Customer-specified Advertiser Cost by deducting, if any, the margin specified by the Customer from the Advertiser Cost. The remaining amount is the Buyer Budget and constitutes what may be spent on behalf of the Customer through the AdGear Trader Platform for the configured Ad campaign.

“Buyer Spend” means the total amount payable to AdGear including the AdGear Trader Fees, Third Party Data Costs, Ad Serving Costs, currency and exchange costs if any, as well as Media Costs and any other costs from Ad Exchanges for the procurement of media, with respect to transactions executed within the Buyer Budget.

“Buyer Spend Pre-Trader Fees” means the sum of Media Costs, Ad Serving Costs, Third Party Data Costs, as well as any other costs from Ad Exchanges from the procurement of media, with respect to transactions within the Buyer Budget but excluding AdGear Trader Platform Fee.

“Inventory” means the online advertising inventory available for selling or buying by or for Customer through the AdGear Trader Platform, including through Customer Sourced Media, on any Ad Exchanges or through other selling platforms.

“Initial Training Session” is a single training session to provide certain Customer employees basic trading practices in relation to the Services sufficient to use such Services in a reasonably efficient manner.

“Insertion Order” means the online or printed document(s) providing details of an Ad campaign, which shall be deemed to incorporate by reference the Canadian Interactive Advertising Bureau’s then current terms and conditions if Customer is based in Canada, or the US Interactive Advertising Bureau’s then current terms and conditions if Customer is based outside Canada.

“Media Costs” means the costs associated with the procurement of Inventory from the Ad Exchanges. Often, but not always, this cost is the result of a generalized second-price auction executed by the Ad Exchanges.

“Services” means, for the specific purpose of this Addendum, the services provisioned by Customer through the AdGear Trader Platform (and the Additional Services, if any) whereby AdGear purchases Inventory for Customer from third parties through Ad Exchanges or other sources, or pursuant to Customer Sourced Media transactions.

“Tag(s)” means any programming code or HTML that requests AdGear to serve an Ad (regardless of whether the Ad has been uploaded into AdGear or is configured as a third party tag calling a third party Ad server).

“Third Party Data” means the data provided from third party data providers for Services.

“Third Party Data Costs” means the total costs associated with the use of Third Party Data, if any, required as part of fulfilling or optimizing an Ad campaign.

“Trademarks” means trademarks, service marks, trade names and business names and other distinctive brand features, including all goodwill associated therewith.

Service Access License. AdGear hereby grants Customer a non-exclusive, non-transferable, non-sub licensable limited right and license during the Term to remotely access and use the AdGear Trader Platform as made available by AdGear. Customer shall have access to the AdGear Trader Platform only via remote access through the confidential password login process made available through the AdGear Trader Platform or, as the case may be, through Additional Services. Only Customer employees and employees of Customer’s Advertisers, agents and subcontractors approved (not to be unreasonably withheld) by AdGear in writing shall be allowed to use the AdGear Trader Platform pursuant to this Addendum. Customer shall be responsible for the use of the AdGear Trader Platform in accordance with this Addendum by any of its employees and Advertisers, agents and subcontractors. Except as expressly permitted under this section, Customer will not make available or disclose any portion of the AdGear Trader Platform or provide access thereto, for any purpose whatsoever, to any person which is not a Customer employee.

Ad Campaign Data. Customer is solely responsible for (i) providing accurate information regarding any Ad campaign using the Services; (ii) creating, loading, and implementing the related data files via the Services in accordance with this Addendum; and (iii) ensuring that the Ads, content, materials, and/or landing pages connected to the Ads do not cause damage or injury to AdGear or its technology, software or equipment.

No Guaranteed Inventory. AdGear will purchase Inventory for Customer through the AdGear Trader Platform within Buyer Budget and in accordance with the campaign strategy criteria defined by Customer on the AdGear Trader Platform. However Customer acknowledges and agrees that AdGear does not guarantee that Ad inventory meeting Customer’s selected criteria will be available on Ad Exchanges or other sources, or that it will be available in the volume desired by Customer, or that Customer will be successful in acquiring such Inventory.

Transactions Amounts and Transaction Costs. Customer acknowledges and agrees that the loading data files or campaign specifications onto or via the Services will result in Ads being purchased, including through Ad exchange systems and other sources, without further prior consent, process or other requirements. Except to the extent caused by a technical malfunction solely in the AdGear technology that is not based on any malfunction of any third party system, Customer is obligated to pay AdGear for all Buyer Spend. In addition to paying AdGear the appropriate fees invoiced by AdGear in accordance with Schedule B hereto, Customer shall honour and reimburse AdGear for all transaction amounts paid or advanced by AdGear as a result of Inventory transactions initiated through the Services and all transaction costs incurred by AdGear in relation thereto.

Advertisers; Customer is solely responsible for soliciting all Advertisers and launching all Ad campaigns either directly on the AdGear Trader Platform or via express and specific written instructions to AdGear. Customer represents that it has obtained and will at all times maintain all rights, license and clearances from Advertisers necessary to utilize the AdGear Trader Platform or Services for such Advertisers and their clients. Customer represents that it has a direct binding written agreement with all third parties implementing advertising Tags for the duration of each Ad campaign. Customer is responsible for ensuring that all third party advertising Tags will reliably serve the Advertiser’s approved creative for the duration of the Ad campaign and be in compliance with all applicable laws.

Insertion Orders. Customer represents and warrants to AdGear that prior to using the Services in a specific occurrence, it shall have a valid Insertion Order for the specific Ad campaign delivered through the Services, and that the Insertion Order shall have become legally binding upon Customer and/or its Advertiser by the time the Services are initiated. The link www.adgear.com/termsandconditions/insertionorder.xls contains the current AdGear template Insertion Order to be used by Customer in relation to the devices, as such template may be replaced from time to time by AdGear. Customer agrees to preserve a complete and accurate record of all Insertion Orders relating to this Addendum, for a period up to ninety (90) days after expiration or termination of this Addendum and AdGear shall have the right to obtain, upon written demand, copy of any such Insertion Orders. In the event of order information discrepancies, the AdGear Trader Platform will be the system of record.

Lawful Material. Customer shall not post or distribute any Ads through the Services that are obscene, illegal, or which promote illegal behavior.

Representations. Customer represents and warrants that it has the authority (i) to act as agent on behalf of each of its Advertisers in performance of this Agreement and (ii) to bind each of its Advertisers to the payment terms contained herein.

Employees. Customer agrees that it is responsible for any acts or omissions of any of its employees, agents or subcontractors, and that it will ensure such agents and subcontractors comply with the terms of this Addendum.

Trademark License. Customer, as authorized by its Advertisers, hereby grants AdGear a limited, non-exclusive, royalty free right and license during the Term to use, reproduce, perform, and display Customer’s and Advertiser’s Trademarks, including but not limited to the use, reproduction, performance and display of such Trademarks with Ads served in connection with this Addendum.

Support and Training. AdGear will make technical support for the AdGear Trader Platform available to Customer during Business Hours via the means of communications specified in Schedule C. AdGear will provide an Initial Training Session for Customer’s employees at a mutually-agreed location. Customer may request additional training or training on its premises, which AdGear may provide at AdGear’s then current standard published rates for such training.

Integration. Integration may be required for each Service being ordered by Customer as a necessary prerequisite for the provisioning of the Services. A description of any integration tasks and Customer dependencies will be agreed upon and set out in a technical schedule to this particular Addendum for the Service being ordered by Customer.

Non-Exclusive Right to Data. Customer hereby grants AdGear a non-exclusive, non-transferable limited right to access the Customer data to the extent necessary to perform the Services for Customer as contemplated in this Addendum.

ADDENDUM – PROGRAMMATIC SELLING SERVICE TERMS AND CONDITIONS

Definitions. Unless otherwise defined herein, capitalized terms shall have the meaning set forth in the MSA.

“Ad(s)” has the meaning attributed thereto in the MSA.

“Ad Impression(s)” means the display of a creative on a digital media property (such as a webpage, mobile site, mobile application, online video, etc.), whether it is clicked on or not. The same creative served two separate times would count as two impressions.

“Ad Campaign(s)” has the meaning attributed thereto in the MSA.

“Ad Network(s)” has the meaning attributed thereto in the MSA.

“Ad Serving” has the meaning attributed thereto in the MSA.

“Additional Service(s)” has the meaning attributed thereto in the MSA.

“Ad Serving Costs” means the total AdGear costs associated with serving Tags for an Ad campaign.

“Initial Training Session” is a single training session to provide certain Customer employees basic practices in relation to the Services sufficient to use such Services in a reasonably efficient manner.

“Services” means, for the specific purpose of this Addendum, the services provisioned by Customer through the AdGear Trader Supply Platform (and the Additional Services, if any

“Tag(s)”means any programming code or HTML that requests AdGear to serve an Ad (regardless of whether the Ad has been uploaded into AdGear or is configured as a third party tag calling a third party Ad server).

“Third Party Data”means the data provided from third party data providers for Services.

“Trademarks”has the meaning attributed thereto in the MSA.

Service Access License. AdGear hereby grants Customer a non-exclusive, non-transferable, non-sub licensable limited right and license during the Term to remotely access and use the AdGear Trader Supply Platform as made available by AdGear. Customer shall have access to the AdGear Trader Supply Platform only via remote access through the confidential password login process made available through the AdGear Trader Supply Platform or, as the case may be, through Additional Services. Only Customer employees and employees of Customer’s Advertisers, agents and subcontractors approved (not to be unreasonably withheld) by AdGear in writing shall be allowed to use the AdGear Trader Supply Platform pursuant to this Addendum. Customer shall be responsible for the use of the AdGear Trader Supply Platform in accordance with this Addendum by any of its employees and Advertisers, agents and subcontractors. Except as expressly permitted under this section, Customer will not make available or disclose any portion of the AdGear Trader Supply Platform or provide access thereto, for any purpose whatsoever, to any person which is not a Customer employee.

Ad Campaign Data. Customer is solely responsible for (i) providing accurate information regarding any Ad campaign using the Services; (ii) creating, loading, and implementing the related data files via the Services in accordance with this Addendum; and (iii) ensuring that the Ads, content, materials, and/or landing pages connected to the Ads do not cause damage or injury to AdGear or its technology, software or equipment.

Advertisers; Customer is solely responsible for soliciting all Advertisers and launching all Ad campaigns either directly on the AdGear Trader Supply Platform or via express and specific written instructions to AdGear. Customer represents that it has obtained and will at all times maintain all rights, license and clearances from Advertisers necessary to utilize the AdGear Trader Supply Platform or Services for such Advertisers and their clients. Customer represents that it has a direct binding written agreement with all third parties implementing advertising Tags for the duration of each Ad campaign. Customer is responsible for ensuring that all third party advertising Tags will reliably serve the Advertiser’s approved creative for the duration of the Ad campaign and be in compliance with all applicable laws.

Lawful Material. Customer shall not post or distribute any Ads through the Services that are obscene, illegal, or which promote illegal behavior.

Employees. Customer agrees that it is responsible for any acts or omissions of any of its employees, agents or subcontractors, and that it will ensure such agents and subcontractors comply with the terms of this Addendum.

Trademark License. Customer, as authorized by its Advertisers, hereby grants AdGear a limited, non-exclusive, royalty free right and license during the Term to use, reproduce, perform, and display Customer’s and Advertiser’s Trademarks, including but not limited to the use, reproduction, performance and display of such Trademarks with Ads served in connection with this Addendum.

Support and Training. AdGear will make technical support for the AdGear Trader Supply Platform available to Customer during Business Hours via the means of communications specified in Schedule C. AdGear will provide an Initial Training Session for Customer’s employees at a mutually-agreed location. Customer may request additional training or training on its premises, which AdGear may provide at AdGear’s then current standard published rates for such training.

Integration. Integration may be required for each Service being ordered by Customer as a necessary prerequisite for the provisioning of the Services. A description of any integration tasks and Customer dependencies will be agreed upon and set out in a technical schedule to this particular Addendum for the Service being ordered by Customer.

Non-Exclusive Right to Data. Customer hereby grants AdGear a non-exclusive, non-transferable limited right to access the Customer data to the extent necessary to perform the Services for Customer as contemplated in this Addendum.

ADDENDUM – ADGEAR FOR ADVERTISERS SERVICE TERMS AND CONDITIONS

Definitions. Unless otherwise defined herein, capitalized terms shall have the meaning set forth in the MSA.

“Ad(s)” has the meaning attributed thereto in the MSA.

“Ad Impression(s)” means the display of a creative on a digital media property (such as a webpage, mobile site, mobile application, online video, etc.), whether it is clicked on or not. The same creative served two separate times would count as two impressions.

“Ad Campaign(s)” has the meaning attributed thereto in the MSA.

“Ad Network(s)” has the meaning attributed thereto in the MSA.

“Ad Serving” has the meaning attributed thereto in the MSA.

“Additional Service(s)” has the meaning attributed thereto in the MSA.

“Ad Serving Costs” means the total AdGear costs associated with serving Tags for an Ad campaign.

AdGear Mobile SDK for Android means the AdGear software development kit which is used with AdGear for Publishers accounts to integrate AdGear for Publishers ad delivery and tracking into one or more Android devices, with the caveat that these devices have to be connected to the public Internet in order to be able to display ads. The mobile device (but not the tablet device) inventory type is used to address and represent the connected device in AdGear for Publishers.

“Initial Training Session” is a single training session to provide certain Customer employees basic practices in relation to the Services sufficient to use such Services in a reasonably efficient manner.

“Services” means, for the specific purpose of this Addendum, the services provisioned by Customer through the AdGear for Advertisers Platform (and the Additional Services, if any)

“Tag(s)” means any programming code or HTML that requests AdGear to serve an Ad (regardless of whether the Ad has been uploaded into AdGear or is configured as a third party tag calling a third party Ad server).

“Third Party Data” means the data provided from third party data providers for Services.

“Trademarks” has the meaning attributed thereto in the MSA.

Service Access License. AdGear hereby grants Customer a non-exclusive, non-transferable, non-sub licensable limited right and license during the Term to remotely access and use the AdGear for Advertisers Platform as made available by AdGear. Customer shall have access to the AdGear for Advertisers Platform only via remote access through the confidential password login process made available through the AdGear for Advertisers Platform or, as the case may be, through Additional Services. Only Customer employees and employees of Customer’s Advertisers, agents and subcontractors approved (not to be unreasonably withheld) by AdGear in writing shall be allowed to use the AdGear for Advertisers Platform pursuant to this Addendum. Customer shall be responsible for the use of the AdGear for Advertisers Platform in accordance with this Addendum by any of its employees and Advertisers, agents and subcontractors. Except as expressly permitted under this section, Customer will not make available or disclose any portion of the AdGear for Advertisers Platform or provide access thereto, for any purpose whatsoever, to any person which is not a Customer employee.

Ad Campaign Data. Customer is solely responsible for (i) providing accurate information regarding any Ad campaign using the Services; (ii) creating, loading, and implementing the related data files via the Services in accordance with this Addendum; and (iii) ensuring that the Ads, content, materials, and/or landing pages connected to the Ads do not cause damage or injury to AdGear or its technology, software or equipment.

Advertisers; Customer is solely responsible for soliciting all Advertisers and launching all Ad campaigns either directly on the AdGear for Advertisers Platform or via express and specific written instructions to AdGear. Customer represents that it has obtained and will at all times maintain all rights, license and clearances from Advertisers necessary to utilize the AdGear for Advertisers Platform or Services for such Advertisers and their clients. Customer represents that it has a direct binding written agreement with all third parties implementing advertising Tags for the duration of each Ad campaign. Customer is responsible for ensuring that all third party advertising Tags will

ADDENDUM – ADGEAR FOR PUBLISHERS SERVICE TERMS AND CONDITIONS

Definitions. Unless otherwise defined herein, capitalized terms shall have the meaning set forth in the MSA.

“Ad(s)” has the meaning attributed thereto in the MSA.

“Ad Impression(s)” means the display of a creative on a digital media property (such as a webpage, mobile site, mobile application, online video, etc.), whether it is clicked on or not. The same creative served two separate times would count as two impressions.

“Ad Campaign(s)” has the meaning attributed thereto in the MSA.

“Ad Network(s)” has the meaning attributed thereto in the MSA.

“Ad Serving” has the meaning attributed thereto in the MSA.

“Additional Service(s)” has the meaning attributed thereto in the MSA.

“Ad Serving Costs” means the total AdGear costs associated with serving Tags for an Ad campaign.

“AdGear for Publishers Platform” means AdGear’s technological solution described in the Customer Service Agreement.

“Advertising Data” has the meaning attributed thereto in the MSA.

“Business Hours” has the meaning attributed thereto in the MSA.

“Initial Training Session” is a single training session to provide certain Customer employees basic practices in relation to the Services sufficient to use such Services in a reasonably efficient manner.

“Services” means, for the specific purpose of this Addendum, the services provisioned by Customer through the AdGear for Publishers Platform (and the Additional Services, if any

“Tag(s)” means any programming code or HTML that requests AdGear to serve an Ad (regardless of whether the Ad has been uploaded into AdGear or is configured as a third party tag calling a third party Ad server).

“Third Party Data” means the data provided from third party data providers for Services.

“Trademarks” has the meaning attributed thereto in the MSA.

Service Access License. AdGear hereby grants Customer a non-exclusive, non-transferable, non-sub licensable limited right and license during the Term to remotely access and use the AdGear for Publishers Platform as made available by AdGear. Customer shall have access to the AdGear for Publishers Platform only via remote access through the confidential password login process made available through the AdGear for Publishers Platform or, as the case may be, through Additional Services. Only Customer employees and employees of Customer’s Advertisers, agents and subcontractors approved (not to be unreasonably withheld) by AdGear in writing shall be allowed to use the AdGear for Publishers Platform pursuant to this Addendum. Customer shall be responsible for the use of the AdGear for Publishers Platform in accordance with this Addendum by any of its employees and Advertisers, agents and subcontractors. Except as expressly permitted under this section, Customer will not make available or disclose any portion of the AdGear for Publishers Platform or provide access thereto, for any purpose whatsoever, to any person which is not a Customer employee.

Ad Campaign Data. Customer is solely responsible for (i) providing accurate information regarding any Ad campaign using the Services; (ii) creating, loading, and implementing the related data files via the Services in accordance with this Addendum; and (iii) ensuring that the Ads, content, materials, and/or landing pages connected to the Ads do not cause damage or injury to AdGear or its technology, software or equipment.

Advertisers; Customer is solely responsible for soliciting all Advertisers and launching all Ad campaigns either directly on the AdGear for Publishers Platform or via express and specific written instructions to AdGear. Customer represents that it has obtained and will at all times maintain all rights, license and clearances from Advertisers necessary to utilize the AdGear for Publishers Platform or Services for such Advertisers and their clients. Customer represents that it has a direct binding written agreement with all third parties implementing advertising Tags for the duration of each Ad campaign. Customer is responsible for ensuring that all third party advertising Tags will reliably serve the Advertiser’s approved creative for the duration of the Ad campaign and be in compliance with all applicable laws.

Lawful Material. Customer shall not post or distribute any Ads through the Services that are obscene, illegal, or which promote illegal behavior.

Employees. Customer agrees that it is responsible for any acts or omissions of any of its employees, agents or subcontractors, and that it will ensure such agents and subcontractors comply with the terms of this Addendum.

Trademark License. Customer, as authorized by its Advertisers, hereby grants AdGear a limited, non-exclusive, royalty free right and license during the Term to use, reproduce, perform, and display Customer’s and Advertiser’s Trademarks, including but not limited to the use, reproduction, performance and display of such Trademarks with Ads served in connection with this Addendum.

Support and Training. AdGear will make technical support for the AdGear for Publishers Platform available to Customer during Business Hours via the means of communications specified in Schedule C. AdGear will provide an Initial Training Session for Customer’s employees at a mutually-agreed location. Customer may request additional training or training on its premises, which AdGear may provide at AdGear’s then current standard published rates for such training.

Integration. Integration may be required for each Service being ordered by Customer as a necessary prerequisite for the provisioning of the Services. A description of any integration tasks and Customer dependencies will be agreed upon and set out in a technical schedule to this particular Addendum for the Service being ordered by Customer.

Non-Exclusive Right to Data. Customer hereby grants AdGear a non-exclusive, non-transferable limited right to access the Customer data to the extent necessary to perform the Services for Customer as contemplated in this Addendum.

ADDENDUM – SERVICE LEVEL AGREEMENT (SLA)

AdGear shall use its commercially best efforts to meet the terms set forth in this Service Level Agreement (“SLA”) set out below and maintain availability of the Services for Customer as set forth below.

Definitions. For the purpose of the SLA, unless otherwise expressly defined herein, all capitalized terms shall have the respective meanings set forth in the Agreement. Furthermore, unless otherwise expressly defined or the context otherwise requires:

“Emergency Support” means Technical Support required by Customer in the event one of the following occurs: (i) AdGear’s failure or deficiency, (ii) AdGear’s network outage. To be considered Emergency Support, the following conditions must be met: (a) the failure or outage amounts to Downtime (as defined below); (b) no alternative solution or workaround is readily is available, and (c) the reported outage or failure creates a significant, negative impact on Customer’s business.

“Force Majeure Event” means any cause beyond a Party’s reasonable control, including, without limitation, acts of war, earthquake, hurricanes, flood, fire or other similar casualty, embargo, riot, sabotage, strikes, governmental act, insurrections, epidemics, quarantines, restrictive governmental laws or regulations, court orders, condemnation, failure of the Internet or other reason of a like nature not resulting from the actions or inactions of a Party and other examples defined in the main body of the Agreement.

“Response Time” means the interval from the time AdGear receives a Support Request from Customer (either by phone or email) to the time AdGear sends a response to Customer as to the status of the problem), either by phone or by email. Response Time does not run outside Core Hours.

“Routine Support” means any Technical Support required by Customer which is not Emergency Support including: (i) informational question or inquiry; (ii) request for adding/removing of content; and (iii) password reset, lost username.

“Support Request” means any and all Customer’s request(s) for Technical Support, either by phone or by e-mail as indicated in Section 2.1 of the SLA.

“Technical Support” means Emergency Support, Routine Support and any other support provided by AdGear hereunder.

Technical Support

Support Description. AdGear shall provide Technical Support to Customer as follow:

(iii) A workaround has been implemented to Customer’s reasonable satisfaction;

(iv) Customer request to close the trouble ticket;

(v) Customer received information to resolve the problem;

(vi) Customer has received notice that a software or hardware problem is caused by a known, unresolved bug in the software or hardware.

Service Level

Uptime Guarantee. Subject to the terms and conditions of this Section 3, AdGear shall provide 99.9% uptime covering AdGear and the availability and connection to AdGear.

Service Downtime. In the event that Customer experiences Downtime during any particular day during the Term, the parties acknowledge that the terms and conditions of this Paragraph 3 of the SLA shall govern Customer’s remedies for such Downtime. “Downtime” as used within this SLA, and as limited by Paragraph 3(e) of this SLA, shall mean any period of time during which AdGear (including any and all related Services and features thereof) and/or its availability and connection to Customer is unavailable during the Term.

Calculation of Downtime. The duration of each individual period of Downtime shall be calculated based on the nearest one-tenth (1/10th) of an hour, for a period commencing from the time Customer first requests Emergency Support or AdGear is otherwise put on notice of AdGear’s unavailability (whichever occurs first), and ending upon Case Resolution.

Default. In the event the cumulative Downtime in any given month during the Term equals or exceeds 0.1% of the time during such month, Customer shall be entitled to seek a “Downtime Credit” for all applicable Service Fees otherwise due in said month. “Downtime Credit(s)” are discounted amounts applied to the AdGear for Publishers Platform Fees otherwise payable by Customer to AdGear , on such pro rata basis of the total Downtime in a given month as compared to the total time in such given month. In the event that Downtime equals or exceeds 0.1% of the time during each of three (3) consecutive months during the Term, Customer shall be entitled to terminate this Agreement pursuant to Section 13 of the MSA, provided that such right of termination is exercised within sixty (60) days from the end of the third consecutive month of such Downtime. Notwithstanding the foregoing, in the event that Downtime equals or exceeds 2.5% of the time during any month during the Term, Customer shall be entitled to terminate this Agreement immediately upon prior written notice to AdGear.

Exclusions from Downtime. Periods where any Service is substantially unavailable but caused by or associated with any of the following events or circumstances shall not count as Downtime for the purposes of this Agreement: (i) failure of Customer equipment or hardware that is owned, leased or provided by Customer, or failure of applications or code that are owned, licensed or provided by Customer or the interaction of these items, except if such failure(s) is a result of AdGear acts or omissions; (ii) issues with Customer’s Internet Service Provider (ISP) connections and issues associated with local area networks or the Internet; (iii) Customer ‘s acts or omissions (or act or omissions of others authorized by Customer ), including negligence, misconduct, faults or defaults or breaches of the Agreement, or Customer’s use of AdGear in breach of the Agreement; (iv) issues arising from misuse of the AdGear for Publishers Platform by Customer; (v) maintenance requested by or attributed to Customer ; (vi) scheduled, extended and emergency maintenance and upgrades, which have been notified to Customer in compliance with this Schedule C; (vii) Force Majeure Event, (viii) any period of unavailability lasting 15 minutes or less per day and/or (ix) any outages caused by third party provided and their supporting systems (collectively, the “Exclusions”). AdGear is not responsible for any failure caused or associated with any of the above Exclusions and Customer releases AdGear from any and all liability in respect thereof.

Notifications. AdGear shall make good faith commercially reasonable efforts to notify Customer by electronic notification of any scheduled outages of the AdGear for Publishers Platform for maintenance or upgrade purposes at least twenty-four (24) hours prior to the scheduled outage.

Changes to Service Level. Service Levels shall be reviewed periodically and each party shall cooperate in good faith to adapt the AdGear for Publishers Platform provided as quantities increase or change in any way. Any changes to the service levels shall be mutually agreed to by the Parties in writing.

Customization. Any custom development or professional services that Customer requests outside the scope of this Addendum shall be performed on a time and materials basis at AdGear’s then current rates.